*1 jury, and we find that the trial court abused by admitting
its discretion Ap- Exhibit 30.
pellant’s point first of error is sustained. prior improperly conviction ad felony possession
mitted was for of marihua obviously
na which delivery related to the charge appellant
marihuana for which was on Appellant
trial. was assessed the maximum permitted
sentence and fine under the law
for this offense. This Court cannot conclude
beyond a reasonable doubt that the errone prior
ous admission of the evidence of a
felony conviction made contribution to the Tex.R.App.P.
punishment 81(b)(2); assessed. State, (Tex.Crim.
Harris v.
App.1990). of the trial court
is reversed and the cause is remanded for
proceedings consistent with Tex.Code CRiM. (Vernon art. Supp. 37.07 1981 and
ProcAnn. 1993).2
REPUBLIC INSURANCE COMPANY Adjusting Services,
and Southwest
Inc., Appellants,
Linda H. STOKER John
Stoker, Appellees.
No. 08-92-00394-CV. Texas, Appeals
Court
El Paso.
Nov.
Rehearing Overruled Dec. (Vernon finding guilt 2. Tex.Code Ceim.Proc Ann. art. had been returned and 44.29(b) if Supp.1993) provides pertinent part as follows: proceed punishment stage to the the trial 37.07, (b), appeals If the court of or the Court of Crimi- Section Article Subsection Appeals nal awards a new trial to a defendant [Emphasis this code. added]. other than defendant convicted of an offense complained-of Insofar as the error did not oc- Code, only trader Section Penal trial, 19.03, guilt stage cur in the or innocence punish- basis of an error or errors in the made guilt stage in both the or innocence of the trial trial, stage ment the cause shall stand as trial, punishment stage and the the case is it have would stood in case new trial had punishment hearing only. remanded for a new below, granted by except been the court 44.29(a). See art. Tex.Code Crim.Proc.Ann. the court shall have commence the new trial as *2 Moreno, Bassham, Fry, Fry
Terry & Joel Bassham, Paso, appellees. El KOEHLER, BARAJAS and Before LARSEN, JJ.
OPINION LARSEN, Justice. appeal presents us "with of
This the issue an extra-contractual claims whether insured’s for breach faith and Deceptive dealing, the Texas Trade Practices Code, Act, always and Texas Insurance upon underlying con- dependent breach of claims, or cre- tract whether their violation unrelat- ates a cause action even where an preclude found to cover- ed exclusion later age Relying upon under the contract. Security Supreme Court’s in Viles v. decision Insurance National (Tex.1990), here we conclude entitled to a trial on their extra-con- were tractual causes of action even their where precluded. contract claim was We affirm the judgment. court’s trial
FACTS 26, 1989, December Linda was On Weatherford, driving on 20 near Interstate El way on her home to from Paso Arlington, visiting had been rela- where she holidays. Traffic tives over Christmas heavy driving well under she hill, Cresting limit. speed she sudden- braking stopped traffic. ly encountered dropped A load of furniture had been driver, forcing highway an unknown driv- emergency ers to take evasive action. immediately in the car Stoker rear-ended her, who Templeton, driven Galen front already in front rear-ended Francis Cox suddenly to of him. Ms. Cox had braked furniture, contra- avoid the and the record is any dictory hit it. It is as to whether she Temple- clear that Ms. Stoker’s collisionwith push him into Ms. a second ton did Cox time. Safety in- Department
A Public officer accident, Hood, Jr., Hulse, Scott, vestigated the and concluded the Joseph Mar- L. Paso, shall, Feuille, Thurmond, Finger El was the unknown driver’s failure & cause load furniture. uncontro- appellants. secure that Ms. hit the furni- reason for verted Stoker never the furniture-laden as a dropped coverage. ture the unknown vehicle that it. uninsured motorist summary The Stokers carried and unin- filed a Defendants motion for *3 coverage judgment, claiming with vehicle de- that because there was sured/underinsured Republic but no colli- contact vehi- fendant Insurance no between the Stoker truck, They dump-and-run insurance. a claim pickup sion submitted to cle and the Re- Ponce, Republic. Republic public obligation pay damage no hired Abraham had representative not with South- car. The motion men- defendant Stoker’s did Adjusting percentage responsibility in El Paso to investi- west Service tion Ms. Stoker’s gate the Stokers’ claim. Ponce interviewed as a the contract claim. reason Stoker, well, pictures damaged summary judgment urged, Ms. took of her The as car, prepared appraisal. A damage coverage because there was no under the later, days photo- policy, Ponce few Ms. Stoker sent the Stokers’ extra-contractual also, graphs by daughter, her The trial scene taken failed as a matter of law. showing along granted summary judgment furniture strewn the Inter- the con- court tract, tort state. Ponce denied Stoker’s uninsured mo- but refused to do so on the claim, saying deceptive practice allegations. more than torist she had been percent causing at fault in accident. in jury remaining A resolved all issues undisputed at the time Ponce de- finding things plaintiffs, among favor of other claim, nied Stoker’s he had not reviewed the good Republic had breached its report, accident DPS had not interviewed in dealing, engaged fair unfair faith and had Cox, or Templeton spoken had not with Stok- deceptive by misstating or acts Texas law (a daughter passenger in the car at er’s by attempting not to effectuate a Stoker, collision), who time nor John fair, equitable prompt, settlement of a driving immediately a rental truck be- was claim, unconscionably. had The behaved hind his wife when the accident occurred. Adjusting jury found that also Southwest denial of the claim based Ponce’s was deceptive engaged had Service unfair or upon the information he received from Ms. by attempting not settle acts effectuate Later, Stoker. under Ms. Stoker’s ment, that it had behaved unconsciona coverage, Templeton he sent check for the bly. jury found that both defendants damage to his car. knowingly. engaged in this conduct later, Abney, recovery months elected their
Several Linda Senior Plaintiffs action, Republic, Claims Examiner at confirmed the Code causes of thus DTPA/Insurance deny stating attorney’s damages. obtaining she fees and treble decision collision, proximate Although that the under the “felt cause of entered practices theory, argue (solely) deceptive ... furniture the scattered defendants oddly punctuated plaintiffs not enti roadway.”1 before this Court that This correspondence under their faith and letter was the last between tled to recover they dealing claim either could insurer and Stoker before she and her because suit, any underlying obli alleging filed not establish contractual husband breach contract, arguments gation. We will the insurer’s examine these breach of and fair dealing, together, as the breach of duty of faith and fair DTPA Insur dealing violations. can establish and Texas DTPA and Texas Insurance Code violations, and Article 21.21 Abney Ponce nor ever mentioned the ance Code Neither analyses evaluating both car and similar lack of contact between Ms. Stoker’s courts use public implying in the this claim. See By that unless the furniture Tex.Civ.Prac. 33.001(a) (Vernon Supp.1993), between was the sole cause of the collision road Ann. art. Rem.Code insured, Templeton 2212a, and therefore Mr. and the § formerly art. TexRev.Civ.Stat.Ann. coverage, therefore, Stoker had no uninsured motorist conclude, reasonably jury could Republic misstated the Tex Texas law. In apply Republic reviewed Ms. Stoker’s claim Legislature comparative negli adopted the twenty years almost law obsolete doctrine, gence abolishing “sole thus the harsh occurred. accident apparently doctrine relied Re cause” operated or in motor owned against tween the vehicle types of extra-contractual claims Farm, person and the person unknown Bureau such surers. See Vail property insured. Mutual Insurance Tbx.Ins.Codb 5.06-l(2)(d) (Vernon Supp.1993). (Tex.1988); Inc. v. art. Agency, Allied General Ann. (Tex.App Moody, 788 S.W.2d . —Dal established that this case The evidence denied). las writ by the unidentified was not hit Ms. Stoker truck, any of nor hit did she CLAIM “INDIRECT CONTACT” Indeed, dropped. there furniture it any driver involved competent evidence that error, urge cross-point In a actually hit the collision in the chain-reaction granted court not have that the trial should *4 furniture. summary judgment on of con- their breach “physical the
tract claim because contact/hit” response summary Plaintiffs sat- requirement of the insurance was Stoker, only testimony the of John contains by connecting chain of the isfied contact vantage an elevated truck from his who truck, furniture, dropped pickup the Cox cab, saw: vehicle, vehicle, Templeton ultimate- the falling off a brown [F]urniture ly does Ms. Stoker.2 We find the evidence onto the A vehicle trav- truck Interstate. application indirect con- not warrant my came eling one car ahead of wife to plaintiffs’ rule cross- tact overrule in order to avoid stop in the left-hand lane point. from furniture which had fallen the the immediately preced- pickup. vehicle Generally, an insured cannot recov ing my car the vehicle wife’s rear-ended portion er uninsured of a motorist stop had come to a the left-hand which policy coverage when an motorist unknown my subsequently wife rear-ended lane and damage, physical absent con causes actual that second vehicle. Young two. Farm tact between the v. State Automobile 711 Mutual Insurance say- close to evidence which comes (Tex.App. 262 writ Paso any actually hit ing that vehicle involved — El n.r.e.); In Trinity refd Goen Universal report police investigative furniture is the Kansas, Inc., surance Co. 715 S.W.2d (which summary part judg- was writ). (Tex.App 126 record, but into evidence ment was admitted . —Texarkana requirement spelled This out trial). really it reach that Even does not policy itself, Stokers’ insurance and has been way: the event this conclusion. describes governing in the statutes codified pickup carrying A furniture travel- brown coverage. policy pro The Stoker’s insurance improperly secured west on IH-20 had vided: small load. A table and a few other items motor a land ‘Uninsured vehicle’ means unit #2 spilled onto IH-20 in front of ... any type, or motor vehicle trailer of striking which tried to avoid [Cox] hit is a and run vehicle whose [w]hich # damage 2. Unit furniture caused operator or owner cannot identified be # 3 applied causing [Tem- unit # brakes you any hits ... a vehicle which or which and unit # 4 to take eva- pleton] [Stoker] family occupying.... member are action too. Unit # 2 was struck sive # 3 in # 3 and unit # struck rear pro- Similarly, the Texas Insurance Code damage the vehicles. rear. Minor vides: interpreted to mean insured to under the If this narrative can be recover [F]or furniture, it coverages did hit the motorist where that Cox uninsured there was operator any motor vehicle uneontroverted owner or nevertheless contact, indirect, bodily injury property direct or between causes never which Moreover, report unknown, police actual damage to the Cox and Stoker. insured purpose by plaintiff only for the occurred be- was offered physical contact must have Property Manage- reviewing summary Mr. grant the trial dard set forth Nixon v. In court’s Co., Inc., (Tex.1985). judgment, stan- we adhere to the well-established ment showing investigation that Ponce’s ry. cross-point Plaintiffs’ of error is over inadequate. Plaintiffs’ counsel stated several ruled. offering report times that he was for that EXTRA-CONTRACTUALCLAIMS
purpose only, not for the truth of assertions
Thus,
Thus,
contained within it.
this case does not
question
we are left with the
present
question
a fact
phys-
of even
plaintiffs’
indirect
whether
extra-contractual claims
ical contact
pickup’s
between the
load and
survived dismissal of the breach of contract
Ms. Stoker’s vehicle.
closely
action.
points
fifteen
interrelated
error, Republic
urge
and Southwest
that it
acknowledge plaintiffs’ argument
We
was error for the trial
judg-
court to enter
public policy
behind the
Stokers,
ment for
arguing
that no act or
contact
prevent
rule is to
false insurance
omission
proxi-
defendants could have
against phantom
arising
drivers
from
mately
any damage
plaintiffs.
caused
De-
single-car
Clearly,
accidents.
is the
fendants claim that because the Stokers had
underlying
rule’s
purpose.
argue,
Plaintiffs
recover,
right
no contractual
the insurer’s
therefore,
independent
where there is
(no
pay
refusal to
wrong
them
matter how
corroborating evidence that
neg
an unknown
reason)
could cause no harm. We dis-
ligent
damage
insured,
driver caused
to the
*5
agree.
purpose
physical
of the
contact rule is
satisfied, and this
enough
should be
to estab
Supreme
The Texas
recog
Court
lish uninsured
coverage. They
motorist
cite
duty
nizes that
fairly
insurers have a
to deal
Latham v. Mountain States Mutual Casual
good
and in
faith with their insureds. This
ty
faith, of ex- deny after that collision. Linda those too, theory adopted never men- investigation pressly an there is a reason- reveals tioning as lack of contact a rea- otherwise] to do so. hold [To able basis The is and, for claim. law son the Stoker destroy policies would these es- a there is reasonable sence, “[w]hether clear that by permitting the tort abolish judged by the basis, ... must basis for denial be justify any on matter insurer time the claim facts before the insurer trial, late as its how technical Viles, 788 at 567. was denied.” S.W.2d thorough investigation make failure Id., prior at 568 to denial claim. of tort this makes out claim the We find [Emphasis added]. duty good faith and fair of breach dealing DTPA and directly point for violation We find Viles here. One (Vernon 21.21, § is to art. essential element insurer’s Tex.Ins.Code Ann. jury investigation Supp.1993). de was entitled to find conduct a reasonable Ponce, Abney, and later denied the nying benefits. Aranda v. Insurance Co. (Tex. America, inadequate an in- North Stoker’s claim based 1988). investigation vestigation, incomplete apportionment an Where that does amongst inquiries generally responsibilities parties essen all to this include considered tial, accident, applies misrepresentation or where it erroneous standards law years liability, many ago. of a fault and insurer’s denial was abolished independent claim preemptory claim can be an breach of This sort of denial exact- dealing, ly even where another what extra-contractual causes action jury designed discourage. here was reason claim later discov that, justify ered to find rather than treat denial. entitled to *6 person a insured a to whom it owed as case, independent In this the insur adjuster special duty, the and its took insurer Ponce, investigator, ance Abraham denied to Ms. from the position a adversarial Stoker Ms. reviewing po Stoker’s claim without the out, investigate set not the start. Ponce accident, report viewing lice on the without claim, deny coverage facts of this but obtaining the of photographs accident site or was a rear-ender. because the collision Stoker, beyond given by it those him Ms. interviewing Templeton, Finally, without that Fifth Mr. we note the Circuit Cox, Stoker, daughter body law Appeals, applying Mr. Ms. Stoker’s San of this of Court Mitchell, trooper opinion by Reavley, formerly dra of or the DPS who initial in an Justice Court, ly investigated Supreme in an the Ponce the has held accident scene. Texas that the concluded Ms. Stoker was more than 50 Article 21.21 case that even where under- percent responsible lying plain- for did cover the rear-end collision insurance contract not loss, by comparing only her fault with that of Mr. tiffs nevertheless: Templeton. He made no effort to account obligations the made enforceable Because dump-and-run pickup for the fault of the 21.21, by duty article like the common law driver, any responsibility by for borne Ms. dealing, imposed of faith and fair are Cox. independent policy duties the the under itself, in- we believe that Viles allows an denying never contended the Ponce he was 21.21 sured to recover under article even claim because there no contact between policy coverage. [Em- in the absence of responsible pickup truck and Stoker’s Savings phasis added]. First Texas Ass’n car; never that a basis he recommended as 950 F.2d v. Reliance Insurance denial, fact that for and in was unaware Cir.1992). (5th Republic eventually adopted theory af- that Thus, denying His trial court’s actions far from ter suit was filed. basis that, creating of the cover- comparing the claim was his conclusion a “wholesale revision Templeton age policy a insurance” as negligence to that of extended under Stoker it, correctly only, percent applied would frame was more than 50 re- defendants sponsible accident, pronounced Supreme law for the and the furniture a “solely” following the lead of former highway in the was not the cause Court and Supreme majority, heavily Court Justice on the Fifth relying Circuit Viles Appeals. Court of Security National Insurance (Tex.1990), today holding an are that our We believe decision here is further against has insured who no cause action justified rely because insureds entitled to are company her own insurance for breach of grounds deny- the insurer’s stated contract because the is not loss and was they may a so make reasoned never covered the uninsured/underinsured pursuing decisions about claims court. As provisions policy, a has nevertheless noted, the Viles Court hold otherwise viti- cause of action for breach of the by allowing ates the tort the insurer to es- dealing simply because the cape liability any theory it allows representative company employ and a payment, to avoid no matter how late in the gave wrong ee reasons day theory is discovered and no matter claim did not a “thorough” conduct and/or theory how weak earlier is aban- words, investigation. though other even Here, doned.3 it would force Stokers to company insurance has for its undergo trouble expense hiring a provisions, insured’s loss under the it lawyer suit, bringing believing they could right polite better be when it denies prevail by proving simply that Ms. Stoker claim or could probably it will become percent was less causing than at fault in damages theory liable for that it did accident, only an to find later the insur- its deal with insured in faith. er’s counsel has crafted another reason for your used compa to be that when suggested denial which was never to them ny, agents representatives did not they filed suit. To allow such an you courtesy intelligence treat with when purpose outcome would defeat the entire of you loss, you merely suffered noncovered doctrine, Doggett tort as Justice noted in got yourself company. But new now under Appellants’ Viles. Points of Error One majority herein, reasoning you Viles and the through Fifteen overruled. hope suffering will that when noncovered loss, company representative, your claim, gives when is rude and CONCLUSION you wrong some cockamamie 1 or reason for *7 Although expand we decline to the “indi- your honoring not claim. theory rect contact” of uninsured motorist important keep It is in mind that there coverage and find the therefore trial absolutely is no evidence that Mrs. Stoker’s2 correctly summary judgment court entered vehicle came into contact with either claim, on the breach of contract we neverthe- (unknown) pickup the truck or the uninsured less find that to judg- were entitled furniture that fell off and the the onto ment on their extra-contractual theories of contact, highway in and the absence of such recovery. We therefore affirm the trial the has no insurer under the unin- judgment. court’s coverage. sured/underinsured Viles, company improper- the insurance KOEHLER, Justice, dissenting. ly claim denied a valid at the time it was respectfully majority continuing negotiate I the dissent from made and later after opinion. what, insureds, represents my This case in with its the claim on the denied opinion, example ground is an of the excellent differ- technical the insureds had failed judicial judicial proof ence between to submit sworn loss within the activism policy required day period. Dog- conservatism. 91 Justice present cockamamy adj. Slang_ 3. We note this case not 1. does Cockamamie also pled Ludicrous; situation the where insurer alternative de- nonsensical. The American Heri- theories, fensive or relied more than one (2nd 1985). Dictionary 286 ed. tage filed, denying a basis for claim. Once suit was comparative responsibility theory disap- the Appellees' to as "Mrs. in Referred Stoker” filed, peared. suit Before it was never men- Brief. tioned.
81
duty ease
good
faith
-writing
majority,3 held
breach
the
gett
simple
for a
ex-
basis
the
had a reasonable
pansively
“special
of the
rela- whether
insurer
that because
insured,
claim.
denying
uninsured motorist
tionship”
insurer and
there
the
between
Arnold,
167;
Farm
duty
to investi-
725
at
State
imposed
“on the insurer
S.W.2d
faith,
Polasek,
gate
thoroughly
in
847 S.W.2d
Lloyds,
Inc. v.
writ).
investiga-
Put
deny
only
after an
(Tex.App.
those
Antonio
— San
is a
to do
tion reveals there
reasonable basis
basis for
way,
in
the “reasonable
another
Viles,
so.”
at 568. Under that
delaying payment
788 S.W.2d
of the
the
or
claim
reasoning,
an in-
pronouncement
Aranda,
broad
claim,”
would
liable to its insured for
surer
become
the claim is valid.
play
into
when
comes
though
damages
faith
it made a
consideration,
bad
even
Where,
under
as in the case
prompt
of a
claim unless it
denial
noncovered
policy,
the
the claim is not covered
“a
previous
to the denial conducted
thor-
by definition a rea
company has
ough investigation.”
denying the claim. More
sonable basis for
over,
part
duty
there
on
Interestingly,
majority and
both the
poli
attorney to
Arnold,
read
insured
his/her
in
v. National
concurrence Viles cite
cy
the insured has a
to determine whether
County Mut. Fire Ins.
pronouncement pointed out Viles concurrence) holding with
Viles conflict v. Aranda Insurance Co. North Amer ica, (Tex.1988), which
required asserting that the insured a breach first must estab SPENCER, Appellant, David L.
lish “the of a basis for absence reasonable delaying [policy] payment *8 say benefits.” Aranda went on Texas, Appellee. STATE objective requires “an test determination of whether reasonable insurer under similar No. 06-93-00040-CR. delayed circumstances would have or denied Texas, Appeals of Court of claimant’s benefits.” Texarkana. Aranda, if the insurer Under had reason denying the it did not able basis for 30, 1993. Nov. thorough it had “a matter whether conducted represen investigation” or whether its claims given
tatives valid reason. same
was true under Arnold where the insurer paid ultimately pay
should have did
insured under the uninsured motorist cover
age following suit question in subsequently filed majority. as a Defined herein 5-4